Foundation Files Supreme Court Brief In Due Process Case

Atlantic Legal Foundation today filed a friend of the court brief in the U.S. Supreme Court on behalf of the National Association of Manufacturers in Sackett v. U.S. EPA, a case involving important due process rights and property rights.

The Sacketts own a small (approximately one-half acre) residential lot in Idaho. After obtaining all required state and local permits and approvals, they began to clear and grade the land so they could build a single family home. After the work had begun, the Sacketts received a "Compliance Order" from the regional EPA office, advising them (1) that the EPA had determined without any hearing or opportunity for a hearing that the Sacketts had violated the Clean Water Act by conducting activities in a wetlands; (2) that they had to restore the property to the condition it was in before they did the work including removal of any fill and replanting of vegetation on a schedule set by the EPA; (3) that they had to obtain a federal permit to do any work on their land; and (4) that they were subject to civil fines of up to $32,500 per day, or administrative penalties, or even criminal prosecution. The Sacketts believed the EPA was in error because they believed their property was not a designated wetlands and not subject to EPA’s jurisdiction. Their request for a meeting with the regional EPA officials was ignored.

The Sacketts then sued in federal court, alleging that (a) they were entitled to judicial review of the EPA’s Compliance Order and that (b) if they could not obtain judicial review under the Clean Water Act or the Administrative Procedures Act the issuance of a compliance order and imposition of penalties without a judicial hearing violated their right to Due Process of Law. The federal district court and the federal Court of Appeals for the Ninth Circuit ruled against the Sacketts, holding that the Clean Water Act implicitly provided only for a judicial hearing after they either did the work the EPA demanded and sought to recover the costs or refused to comply with the Compliance Order and waited for the EPA to start enforcement proceedings in federal court.

The U.S. Supreme Court agreed to review the Ninth Circuit’s decision and to decide (1) whether the Sacketts can seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act and (2) whether the inability to seek pre-enforcement judicial review of the compliance order violates the Due Process Clause.

Atlantic Legal’s brief addressed the second question and argued that a long line of Supreme Court precedent teaches that Due Process requires a pre-enforcement judicial hearing, except where the government agency must act in an emergency and that neither the facts of this case nor the EPA’s compliance order indicated that there was an emergency. Thus, EPAs refusal to provide a pre-enforcement hearing before a neutral decision-maker was a denial of Due Process because the procedural choices described by the Ninth Circuit are untenable: either the Sacketts spend upwards of $250,00 and two years to get a permit or run the risk of hundreds of thousands of dollars of penalties before they could get judicial review.